Com. v. Gerber, G.

J.A31044/13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
GARY LEE GERBER JR., :
:
Appellant : No. 1415 EDA 2013
Appeal from the Judgment of Sentence March 19, 2013
In the Court of Common Pleas of Monroe County
Criminal Division No(s).: CP-45-CR-0000112-2007
BEFORE: BENDER, P.J., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 07, 2015
Appellant, Gary Lee Gerber, Jr., appeals from the judgment of
sentence for murder in the first degree1 entered in the Monroe County Court
of Common Pleas. This is the third time this case comes before the Superior
Court.2 Most recently, another panel of this Court remanded for a hearing
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
2
See Commonwealth v. Gerber, 1279 EDA 2011 (order) (Pa. Super. filed
Feb. 27, 2012) (remanding for trial court to hold hearing on Appellant’s
claim of after-discovered DNA evidence); Commonwealth v. Gerber, 2028
EDA 2008 (unpublished memorandum) (Pa. Super. filed May 8, 2009)
(vacating June 17, 2008 judgment of sentence to permit Appellant to
withdraw his guilty plea to third-degree murder).
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on Appellant’s claim of after-discovered evidence. The trial court held the
hearing and denied Appellant’s motion for a new trial.3 Appellant now raises
twelve claims divided into the following grounds: (1) the trial court erred in
declining to hear his ineffective assistance of counsel claims; (2)
Pennsylvania State Police Trooper Frank DeAndrea improperly gave expert
testimony at trial; (3) the Commonwealth committed prosecutorial
misconduct in cross-examining Appellant about his previously withdrawn
guilty plea to third-degree murder in the instant case; (4) the
Commonwealth committed prosecutorial misconduct by knowingly
presenting seven instances of false or misleading testimony; and (5) he was
entitled to a new trial based on newly discovered DNA evidence. We affirm.
The killing of the victim, Robert Hagan, occurred in August of 1993.
Appellant, however, was not charged until thirteen years later, in December
of 2006. In March of 2008, Appellant pleaded guilty to murder in the third
degree and related offenses,4 and on June 17, 2008, the trial court imposed
a sentence of ten to twenty years’ imprisonment. On direct appeal,
however, this Court agreed with Appellant that the trial court erred in
3
As we discuss infra, on remand the trial court also granted Appellant leave
to file post-sentence motions nunc pro tunc, held a hearing on them, denied
them, and resentenced him to life imprisonment.
4
See 18 Pa.C.S. § 2502(c). Appellant also pleaded guilty to possessing an
instrument of crime and tampering with physical evidence. See 18 Pa.C.S.
§§ 907(a), 4910(1).
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denying his pre-sentence motion to withdraw guilty plea. We thus vacated
the judgment of sentence and remanded for further proceedings.5
The case proceeded to a jury trial in July of 2010. 6 The trial court
summarized the evidence, viewed in the light most favorable to the
Commonwealth, as follows:
The majority of the facts are not in dispute: in the early
morning hours of August 13, 1993, [Appellant] was alone[ ]
with the victim in the victim’s vehicle while parked along
Rimrock Road in Monroe County. At some point while
inside the vehicle, [Appellant] “lashed out” on the victim,
stabbing him four times in the back[7] . . . . [Appellant]
admitted stabbing the victim. [Appellant] also cut the
victim’s throat in a manner that showed no sign of
hesitation; the victim’s neck wound was characterized as a
superficial wound because no major arteries were cut, but
the area had many blood vessels which would have
resulted in fairly profuse bleeding. These stab wounds
were potentially lethal because [of] the amount of
hemorrhaging and blood loss the victim suffered, as well
as his collapsed lung.
5
Gerber, 2028 EDA 2008. The Pennsylvania Supreme Court denied the
Commonwealth’s petition for allowance of appeal on February 12, 2010.
Commonwealth v. Gerber, 674 MAL 2009 (per curiam order) (Pa. filed
Feb. 12, 2010).
6
This case was prosecuted by the Office of the Attorney General.
7
At trial, Appellant testified he was inebriated and parked his pickup truck in
a parking lot. N.T., 7/13/10, at 22. Two men approached, told him he could
not park there and they would give him a ride, and helped him into what he
believed was the victim’s car. Id. at 23. The next thing Appellant
remembered was waking up in the victim’s car, his pants and underwear
were pulled down, “somebody was on top of” him and “trying to force
something into” him, and he felt “excruciating pain.” Id. at 25, 26. On
appeal, Appellant avers the victim was “trying to homosexually rape him.”
Appellant’s Brief at 6.
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After being stabbed, the victim exited the car and fled.
The victim’s body was eventually found on a bridge on
Rimrock Road approximately 290 feet away from where
[Appellant] stabbed the victim. Blood drops were found in
various locations along the road leading toward the bridge
on Rimrock Road. [I]t was determined [the victim] had
suffered massive injuries to his head, i.e. a crushed skull
and brain, and massive injuries to his torso, i.e., a
crushing injury to his entire side of his chest. These
injuries were consistent with him being run over by a car.
[Appellant] stated that, after he stabbed the victim, he
got into the driver’s seat of the victim’s vehicle and drove
up Rimrock Road toward Route 611, which is the same
direction where the victim’s body was found.[FN]
Thereafter, [Appellant] drove the vehicle to his father’s
junkyard and wiped down the interior of the car to clean
off the blood. [Appellant] stated that he only cleaned off
the steering wheel and the shifter of the vehicle, but also
noted that the “car [was] like forensically clean like
somebody who knew what they were doing did it.”
Although [Appellant] only admits having wiped down the
interior of the vehicle, [Appellant’s] father testified that he
also observed [Appellant] wiping down the car from the
outside. Additionally, wipe marks were found on the
passenger door window of the victim’s vehicle and blood
was present on the front license plate of the vehicle in a
manner that was consistent with someone wiping the
license plate. Finally, [Appellant] admitted “getting rid of
the car” by dumping it along Schaffer’s School House
Road.
____________
[FN]
[Appellant] testified that he never felt an impact of
hitting a body that night, but he did admit that he could
have driven through a “brick wall [because he] was so
[expletive] scared that night.”
____________
In his closing argument, [Appellant’s] trial counsel
made clear that the majority of these facts were not in
dispute. However, the Defense argued that [Appellant]
stabbed the victim in self defense, believing that he was
being sexually assaulted by the victim. [Appellant] claims
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that he began driving the victim’s car, but never knew that
he hit the victim because of his emotional state after being
sexually assaulted and because of the foggy weather
conditions that morning. Finally, [Appellant] claims that
he dumped the vehicle on Schaffer’s Schoolhouse Road
because his father told him to and that he never came
forward to the police with his self-defense claim because
he was ashamed of being sexually assaulted.
Trial Ct. Op., 5/31/11, at 9-10 (citations to trial transcript omitted). We
emphasize that at trial, Appellant admitted to hitting the victim with the car
but averred he did not know he hit him. Id. at 66, 67-68, 68-69.
On July 14, 2010, the jury found Appellant guilty of murder in the first
degree. On September 10th, the court imposed a sentence of life
imprisonment without parole.
Appellant filed post-sentence motions. He subsequently obtained new
counsel, who filed additional post-sentence motions, which included a
multiple claims of trial counsel’s ineffective assistance. 8 The court held a
hearing on February 11, 2011, at which it declined to hear the
ineffectiveness claims. Trial Ct. Op., 4/24/13, at 1. The court then denied
the post-sentence motions on April 27, 2011.
Appellant took an appeal with this Court. 9 While the appeal was
pending, Appellant filed a petition for remand for the trial court to consider
8
Appellant was represented at trial by Demetrius W. Fannick, Esq., and then
on post-sentence motions and the instant appeal by William C. Costopoulos,
Esq., and David J. Foster, Esq.
9
Gerber, 1279 EDA 2011.
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newly-discovered DNA evidence—namely, evidence that his blood was not a
part of the blood mixture found on the front license plate of the victim’s car.
This Court granted the petition, vacated the judgment of sentence, and
remanded for an evidentiary hearing and determination of whether a new
trial was warranted.
At this juncture, we note that pursuant to our remand directive, the
trial court’s actions were limited to a determination on Appellant’s motion
based on his claim of newly-discovered DNA evidence. See Pa.R.A.P. 2591
(“On remand of the record the court . . . below shall proceed in accordance
with the judgment or other order of the appellate court[.]”). Our order
specifically provided, “Following the hearing, the trial court shall either
order a new trial or re-impose sentence.” Gerber, 1279 EDA 2011
(emphasis added).
Nevertheless, following remand, Appellant filed a motion for discovery,
on which the court held a hearing on May 7, 2012. The court denied the
motion, and on July 18, 2012, held the hearing on Appellant’s newly-
discovered DNA evidence claim. On November 14th, it denied Appellant’s
motion for a new trial and entered an order resentencing Appellant to life
imprisonment. At this point, the only relief available to Appellant was to file
a direct appeal. See id. However, two and a half months later, on February
4, 2013, the trial court granted Appellant leave to file post-sentence motions
nunc pro tunc. On March 18, 2013, the court then again resentenced
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Appellant to life imprisonment without parole, after allowing him an
opportunity for allocution. Finally, on April 24th, the trial court entered an
order denying Appellant’s post-sentence motions and purporting to grant
him thirty days to appeal. Appellant filed a notice of appeal within thirty
days.
As stated above, Appellant should have filed a notice of appeal within
thirty days of the court’s denial of his motion based on newly-discovered
DNA evidence and re-imposition of sentence. See Pa.R.A.P. 903(a)
(providing general rule that notice of appeal shall be filed within thirty days
after entry of order from which appeal is taken); Commonwealth v.
Crawford, 17 A.3d 1279, 1281, 1282 (Pa. Super. 2011) (quashing appeal
because of untimely notice of appeal). Nevertheless, because the trial court
perpetuated the error by specifically granting Appellant leave to file post-
sentence motions nunc pro tunc and then denying them on the merits,10 we
decline to quash.
Appellant’s first claim is that the trial court erred in declining to hear
the ineffective assistance of counsel (“IAC”) claims raised in his post-
sentence motions. He does not allege specific instances of ineffectiveness,
10
The court improperly afforded Appellant a second opportunity to litigate a
post-sentence motion. Nevertheless, the issues in the present appeal—
excepting his claim pertaining to newly-discovered DNA evidence—were
raised in the original post-sentence motions filed after the sentence of
September 10, 2010, and thus they are preserved for appeal.
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but instead advances a sole claim that under Commonwealth v. Barnett,
25 A.3d 371 (Pa. Super. 2011) (en banc), vacated, 84 A.3d 1060 (Pa.
2014), he “should have been permitted to waive further” review under the
11
Post Conviction Relief Act (“PCRA”), “and the [c]ourt should have
entertained the claims of [IAC], especially because the ineffectiveness claims
12
are factually intertwined with the issues raised on direct appeal.”
Appellant’s Brief at 12-13. We hold no relief is due.
In its May 2011 opinion, filed in response to Appellant’s last appeal,
the trial court noted that Commonwealth v. Holmes, 79 A.3d 562 (Pa.
2013), was pending before our Supreme Court. Trial Ct. Op., 5/31/11, at 5
& n.6. The question in Holmes was, generally, whether a claim of counsel’s
ineffective assistance is reviewable on direct appeal. Commonwealth v.
Holmes, 996 A.2d 479 (Pa. 2010) (order granting allowance of appeal).
11
42 Pa.C.S. §§ 9541-9546.
12
Appellant’s forty-seven page supplemental post-sentence motion averred
trial counsel was ineffective for, inter alia, failing to: (1) object to improper
expert opinions given by Trooper DeAndrea; (2) object to the
Commonwealth’s questioning about his prior guilty plea to third-degree
murder in this case; and (3) cross-examine or impeach witnesses who gave
testimony known to the Commonwealth to be false or misleading.
Appellant raises the above underlying evidentiary claims in this appeal.
Attorney Foster argued at the February 2011 hearing for the court to hear
the ineffectiveness claims: “[T]he issues are pretty strong, and . . . the time
to hear them is now rather than to bifurcate them when they are really
related to the same issues at trial.” N.T. Post-Sentence Mots., 2/11/11, at
5. As we discuss infra, we do hold many of these claims are waived for trial
counsel’s failure to object contemporaneously.
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The trial court opined “the most prudent way to proceed is to follow the
general rule espoused in Grant,” which is that “a petitioner should wait to
raise claims of ineffective assistance of trial counsel until collateral review.”
Trial Ct. Op., 5/31/11, at 5, 7 (quoting Commonwealth v. Grant, 813 A.2d
726, 738 (Pa. 2002)). Furthermore, in its April 2013 opinion, the trial court
considered Appellant’s reliance on Barnett and stated “Barnett clearly
stands for the proposition that a defendant may waive PCRA relief in order
to litigate ineffectiveness claims on direct appeal.” Trial Ct. Op., 4/24/13, at
6-7.
Appellant filed his appellate brief with this Court on July 12, 2013. The
sole legal authority he cites in support of this issue is Barnett. On October
30, 2013, our Supreme Court issued a decision in Holmes:
[W]e hold that Grant’s general rule of deferral to PCRA
review remains the pertinent law on the appropriate timing
for review of claims of ineffective assistance of counsel; we
disapprove of expansions of the exception to that rule
recognized in Bomar;[ 13 ] and we limit Bomar, a case
litigated in the trial court before Grant was decided and at
a time when new counsel entering a case upon post-
verdict motions was required to raise ineffectiveness
claims at the first opportunity, to its pre-Grant facts. We
recognize two exceptions, however, both falling within the
discretion of the trial judge. First, we appreciate that
there may be extraordinary circumstances where a
discrete claim (or claims) of trial counsel ineffectiveness is
apparent from the record and meritorious to the extent
that immediate consideration best serves the interests of
justice; and we hold that trial courts retain their
13
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003).
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discretion to entertain such claims.
Holmes, 79 A.3d at 563 (emphasis added). Furthermore, the Pennsylvania
Supreme Court subsequently vacated the Superior Court decision in Barnett
pursuant to Holmes. Barnett, 84 A.3d 1060.
Appellant advances no argument why the trial court’s reasoning was
incorrect. We hold the court’s analysis is consistent with Holmes. See
Holmes, 79 A.3d at 563. Accordingly, we do not disturb the court’s decision
not to hear his IAC claims.
Appellant’s second claim on appeal is that Commonwealth witness
Trooper Frank DeAndrea improperly gave expert testimony at trial.
Appellant avers the following. The trooper “was never qualified as an expert
[and] lacked the requisite training and experience to render the opinions he
did,” his “opinions were never provided to the defense in discovery,” and the
trial court “never charged the jury . . . that he was an expert witness.”
Appellant’s Brief at 14-15. “The Commonwealth’s entire case, and the only
evidence adduced to support [its] theory of an intentional killing . . . rested
on the testimony of [Trooper] DeAndrea, who was ostensibly called to testify
as to the processing of the crime scene.” Id. at 14. Appellant asserts
Trooper DeAndrea gave the following improper expert opinions: “the critical
heretofore-undisclosed opinion that [the victim] had been run over twice by
[Appellant], forwards and backwards;” the victim’s appearance; “the scene
of the crime, and the measurements, photographs and evidence gathering
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he claimed he undertook;” and interpretation of the evidence, including tire
tracks, palm prints, blood, hairs, fibers, the victim’s physical injuries, and
“automobiles and automobile fluids and other matters that are clearly within
the realm of an accident reconstruction” expert. Id. at 14, 16. Appellant
concludes the trooper’s testimony was inadmissible and highly prejudicial
and that a new trial is required. We agree with the trial court that these
claims are waived.
The trial court opined:
Failure to raise a contemporaneous objection to the
admissibility of evidence at trial constitutes waiver of such
claim. See Pa.R.E. 103(a)[.] This includes a challenge to
the admissibility of alleged “expert testimony” from a
police officer.
After review of the trial transcript, we failed to identify
where [Appellant’s] trial counsel raised an objection on any
of these grounds. [Appellant’s] present counsel also fails
to point to where [Appellant’s] trial counsel raised such
objection. Accordingly, [Appellant’s] claims are deemed
waived.[14]
Trial Ct. Op., 5/31/11, at 15 (some citations omitted).
Pennsylvania Rule of Evidence 103(a) provides that a party may claim
error in the admission of evidence only if he, on the record, “makes a timely
objection, motion to strike, or motion in limine,” and “states the specific
ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(A)-
14
The trial court also set forth, in the alternative, a discussion of the merits
of Appellant’s claim.
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(B) (emphasis added). “We have long held that ‘[f]ailure to raise a
contemporaneous objection to the evidence at trial waives that claim on
appeal.’” Commonwealth v. Tha, 64 A.3d 704, 713 (Pa. Super. 2013)
(citation omitted). Furthermore, the failure to object at trial “to the
admissibility of [an] officer’s ‘expert’ testimony” results in waiver of that
issue. Commonwealth v. DiPanfilo, 993 A.2d 1262, 1268 n.8 (Pa. Super.
2010).
Our review of the trial transcript confirms that Appellant did not
contemporaneously object to any of the testimony that he now challenges on
appeal. 15 Furthermore, the heading in Appellant’s appellate brief for this
issue concedes there was no objection: “[T]rial counsel was ineffective for
failing to object to [Trooper DeAndrea’s] expert testimony.” Appellant’s
Brief at 14. Nevertheless, in response to the trial court’s suggestion of
waiver, he asserts, without citation to legal authority, that “the
Commonwealth was under an affirmative obligation pursuant to the
15
Because Appellant raises multiple challenges to Trooper DeAndrea’s
testimony in this appeal, we further note the following. During the trooper’s
direct examination, which spanned 106 pages of testimony, Appellant lodged
only two exceptions. The first was during the trooper’s recitation of his
education history; Appellant requested the trooper provide dates for his
courses. N.T. Trial, 7/8/10, at 10-11. The second objection was to the
trooper’s statement, “If you’re going to abandon a car and you don’t want to
hide it, you would just leave it in the middle of the road. If I was going to
abandon—.” Id. at 63-64. Appellant objected to the trooper’s “giving his
own personal opinion . . . as far as what he would do if he was hiding a car.”
Id. at 64. The trial court sustained the objection.
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mandatory disclosure rules of discovery to submit its expert reports to
the defense before trial.” Id. at 15 (emphasis added).
We hold Appellant has not persuaded this Court to overlook Rule 103’s
requirement of a contemporaneous objection to evidence. His assertion
pertains only to a Commonwealth duty to provide expert reports in
discovery; he provides no explanation for why this duty should be construed
to also end or correct testimony from its witness at trial. Accordingly, we
agree with the trial court that Appellant has waived any evidentiary
challenge to Trooper DeAndrea’s testimony. See Pa.R.E. 103(a)(1); Tha, 64
A.3d at 713; DiPanfilo, 993 A.2d at 1268 n.8.
We likewise find waived Appellant’s claim that “the [c]ourt failed to
charge the jury that Trooper De[A]ndrea was an expert witness [sic] and
how it should consider the expert opinions that he rendered.” See
Appellant’s Brief at 22. The court instructed the jury without any objection
from either party. N.T., 7/13/10, at 268-306. Upon concluding, the court
asked the parties, “Gentlemen, anything with respect to the charge?” Id. at
306. Appellant’s counsel replied, “No, Your Honor.” Id. Accordingly, any
challenge to the court’s jury instructions is waived for failure to object. See
Pa.R.Crim.P. 647(B) (“No portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate.”); Commonwealth v.
Pressley, 887 A.2d 220, 225 (Pa. 2005) (stating Rule 647 requires specific
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objection to jury charge or exception to trial court’s ruling on proposed point
to preserve issue involving jury instruction).
Appellant’s third claim on appeal is that the Commonwealth committed
misconduct under Pennsylvania Rule of Evidence 41016 by cross-examining
him about his prior, withdrawn plea to third-degree murder for the instant
charges. 17 Because Appellant’s argument pertains to how the testimony
arose, we quote the pertinent part of the trial transcript. The
Commonwealth was cross-examining Appellant about whether he “back[ed]
over” the victim with the vehicle. N.T., 7/13/10, at 68-69. Appellant
replied, and the Commonwealth continued questioning, as follows:
[Appellant:] . . . I never knew I hit him so I know I
didn’t put it in reverse and back over him.
[Commonwealth:] That would be pretty hard to defend,
wouldn’t it?
16
Rule 410 provides: “In a . . . criminal case, evidence of the following is not
admissible against the defendant who made the plea or participated in the
plea discussions: . . . (1) a guilty plea that was later withdrawn[.]” Pa.R.E.
410(a)(1).
17
Appellant also cites Commonwealth v. Badger, 357 A.2d 547 (Pa.
Super. 1976), for the proposition that a withdrawn guilty plea is
inadmissible. Appellant’s Brief at 31-32. We disagree that Badger is
relevant to the issue before us. In that case, the defendant initially
“tendered a guilty plea,” but during the plea colloquy she pleaded not guilty.
Badger, 357 A.2d at 548. However, the only two issues on appeal were
whether: (1) a notarized statement by her alleged co-conspirator was
admissible; and (2) trial counsel was ineffective for requesting the trial judge
to recuse. Id.
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A Backing over someone? I wouldn’t—I would have
took the deal that you guys offered me, and I wouldn’t
even be here if I was an animal like that. I never knew I
hit [the victim.]
Q What are you talking about?
A The 10 years.
Q What 10 years?
A I would only—I would be released in five years from
this date if the Court didn’t overturn the case.[18]
Q Overturn what case, sir?
A My conviction.
Q What conviction?
A When my attorney died before trial.
Q What conviction are you talking about?
* * *
A Three years ago, before trial was to start, my
attorney died. I was given a choice of going to trial or
taking a plea agreement.
Id. at 68-69 (emphasis added).
Over the next seven pages of the transcript, the Commonwealth
questioned Appellant about the circumstances leading to the entry of his
guilty plea and the plea hearing, including Appellant’s agreement with the
18
As stated above, Appellant appealed from the ten-to-twenty year
judgment of sentence imposed after his guilty plea to third-degree murder.
His sole issue was whether the trial court erred in denying his presentence
motion to withdraw his plea. This Court granted relief on that claim and
vacated the judgment of sentence. Gerber, 2028 EDA 2008, at 4-14.
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Commonwealth’s allegation that he stabbed the victim and hit him with the
car. Id. at 69-76. Throughout this questioning at trial, Appellant’s counsel
made no objection. See id.
In the instant appeal, Appellant maintains “the prosecutor, who well
knew what . . . Appellant was talking about, kept goading [him] into
testifying further about the withdrawn plea and then outrageously cross-
examined him with the guilty plea colloquy[.]” Appellant’s Brief at 30.
Appellant concedes that defense counsel did not object, 19 but avers, “This
issue was not waived for the Court had an affirmative duty to end, sua
sponte, this entire fiasco.” Id. at 30, 31. Appellant then asserts that in the
alternative, “this Court should invoke the ‘plain error’ standard used by the
federal courts.” Id. at 31.
The trial court reasoned this claim is waived because Appellant’s
counsel failed to object to the testimony. Trial Ct. Op., 5/31/11, at 19-20.
The court also provided alternative reasoning that, although his “trial
counsel specifically advised [him] to not discuss his withdrawn guilty plea,”
Appellant did so and thus “open[ed] the door.” Id. at 21 & n.18. The court
further noted, an observation which Appellant ignores, that it “specifically
19
Appellant also avers that trial counsel “compounded this prosecutorial
misconduct and error by attempting to rehabilitate [Appellant] on redirect
examination by delving additionally into the details of [prior counsel’s]
death, the refused trial continuance and the guilty plea, all in violation of
Pa.R.E. 410(a)(1).” Appellant’s Brief at 31.
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instructed [the jury] to disregard any evidence with respect to the
withdrawn guilty plea.” Id. at 23 (quoting N.T., 7/13/10, at 288). Finally,
the court rejected Appellant’s claim that the court should have sua sponte
ended the questioning, noting he cited no legal authority in support. Id. at
20 n.16.
A careful reading of the trial transcript reveals the Commonwealth did
not ask Appellant about his prior, withdrawn plea. Instead, it was Appellant
who broached this topic while responding to the Commonwealth’s question,
“That [sic] would be pretty hard to defend, wouldn’t it?” N.T., 7/13/10, at
69. As stated above, Appellant’s counsel made no objection during the
Commonwealth’s subsequent examination about the prior plea. On appeal,
Appellant again cites no authority in support of his claim that the trial court
had a duty to end sua sponte the questioning. Our review of Rule 410, its
comments, and relevant case authority reveals no such duty. We decline
Appellant’s request to “invoke the ‘plain error’ standard.” See Appellant’s
Brief at 31. Instead, we find no authority requiring us to set aside Rule
103’s requirement of a timely objection to the admission of testimony. See
Pa.R.E. 103(a)(1). Thus, we find this issue is waived. See id.; Tha, 64
A.3d at 713.
Appellant’s fourth claim is that the Commonwealth knowingly
presented multiples instances of false and misleading testimony, all of which
were material to the key issues at trial. Appellant’s Brief at 37-52. With
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respect to some of these claims, we disagree with Appellant’s premise—that
the cited instances of testimony rose to the level of false and misleading
testimony. We find the remaining claims are waived.
Our Supreme Court has stated, “It is . . . an established constitutional
principle that a conviction obtained through the knowing use of materially
false testimony may not stand; a prosecuting attorney has an affirmative
duty to correct the testimony of a witness which he knows to be false.”
Commonwealth v. Carpenter, 372 A.2d 806, 810 (Pa. 1977).
The prosecution may not knowingly and deliberately
misrepresent the evidence in order to gain a conviction.
Nevertheless, a claim of purposeful prosecutorial
misrepresentation will not stand if examination of the
record fails to reveal any indication of deceptive tactics on
the part of the prosecution. Minor discrepancies in the
Commonwealth’s case will not be considered false
evidence.
Commonwealth v. Ali, 10 A.3d 282, 294 (Pa. 2010) (citations omitted).
In the case sub judice, the trial court reasoned that Appellant “had
every opportunity to fully-cross-examine all of the Commonwealth’s
witnesses, enabling him to present to the jury any discrepancies that he
found in the Commonwealth’s case.” Trial Ct. Op., 5/31/11, at 26. The
court added that trial was conducted seventeen “years after the crime and
the processing of the scene,” and that “the lapse in time is one factor . . .
when weighing the credibility of the witnesses.” Id. at 26-27. Finally, the
court stated that it gave a jury instruction on false testimony and conflicting
evidence, which included this statement:
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If you should decide that a witness has deliberately
testified falsely about a material point, that is, about a
matter that could affect the outcome of this trial, you may
for that a reason alone choose to disbelieve the rest of his
or her testimony. But you are not required to do so. You
should consider not only the deliberate falsehood but also
all other factors bearing on the witness’ credibility in
deciding whether to believe other parts of his or her
testimony.
* * *
Discrepancies and conflicts between the testimony of
different witnesses may or may not cause you to disbelieve
some or all of their testimony. . . .
Id. at 26 & n.19.
We now review each of Appellant’s claims. First, Appellant challenges
Trooper DeAndrea’s testimony, “All of the blood that we found was on the
berm side [of the road.] It was not in the travel portion of the road.” 20
Appellant’s Brief at 40. Appellant cites the Commonwealth’s exhibit C-72, as
“list[ing] the location of thirteen areas of blood spots,” only one of which
“was located on the berm.” 21 Id. at 41. Appellant concludes this exhibit
20
See N.T., 7/8/10, at 19 (emphasis added). On appeal, Appellant provides
the following context. The location of the victim when Appellant struck him
with the vehicle—whether the victim was on the roadway or the berm—was
at issue at trial. The Commonwealth’s theory of the case was that Appellant
“intentionally drove along the berm in order to strike the victim on the
berm,” whereas Appellant’s defense was “that he unintentionally ran over
the victim on the roadway itself.” Appellant’s Brief at 40.
21
The certified record transmitted to this Court does not include any trial
exhibits. We remind Attorney Foster, “Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
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“directly contradict[ed]” the Commonwealth’s opening statement and
Trooper DeAndrea’s testimony “that all of the blood drops were ‘along the
berm.’” Id.
On appeal, the Commonwealth concedes “Trooper DeAndrea
incorrectly stated on direct examination that ‘All of the blood that we found
was on the berm side[ and] not in the travel portion of the road.”
Commonwealth’s Brief at 33. However, it argues that because its own
exhibit, C-72, “document[ed] the precise locations of the blood drops,
thereby providing the jury with the very information that [Appellant] now
argues the jury was deprived of,” “it can hardly be said that the
Commonwealth misled the jury or that its witness committed perjury[.]” Id.
at 33-34. The Commonwealth further argues that “[a]t most [it] provided
the jury with conflicting evidence” and the jury was tasked to “resolve
evidentiary discrepancies.” Id. at 34.
The trial court noted that Exhibit C-72 “indicates that four blood drops
were located east of the fog line, i.e. on the berm portion of the roadway
and three drops were directly on the fog line.” Trial Ct. Op., 5/31/11, at 27.
It opined, “As such, any arguable precision in the presentation of the
Commonwealth’s evidence about the exact location of the blood drops was
de minimus in nature and of no consequence to the outcome of the trial.”
for the reviewing court to perform its duty.” See Commonwealth v.
B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (citations omitted).
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Id.During direct examination, the Commonwealth questioned Trooper
DeAndrea about his investigation of a blood trail, which led from the victim’s
body toward the dirt parking lot, where he was initially stabbed. The
following exchange ensued:
[The Commonwealth]: Did you follow the blood trial back?
[Trooper DeAndrea]: Yes.
Q And what did you discover when you did that?
A Well, there were several spots along the fog line, the
white line of the road, were you could notice some—
Q If I can interrupt you, on which side of the fog line, the
berm side or the roadway side?
A All of the blood we found was on the berm side. It
was not in the travel portion of the road. And there
were, you know, two drops here, three drops there. . . . .
N.T., 7/8/10, at 18-19 (emphasis added).
On cross-examination, Appellant’s counsel referred to exhibits that
were purportedly photographs of the drops. Id. at 135-37. Counsel asked
whether, from viewing the photographs, it was possible to determine if the
location of the blood drops were in the roadway or measure the distance
between the drops. Id. at 136. The trooper responded that he could not.
Id. Counsel then noted the Commonwealth’s exhibits purported to show
only three blood drops. Id. at 137. The trooper responded, “I testified to
exhibits and explained what they were. Those exhibits are far from every
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photo of the side of the road on Rimrock Road.” Id. He continued, “If you
look through all of the photos, I can guarantee you there are more drops of
blood.” Id.
On redirect examination, the Commonwealth introduced Exhibit C-72,
which was purported to be “a recording [sic] of the distances of the blood
spots.” Id. at 140. Trooper DeAndrea testified the report showed “20
different measurements,” 13 of which were for blood spots. Id. at 141.
Appellant’s counsel then conducted recross-examination about the
exhibit, eliciting Trooper DeAndrea’s testimony that there were blood spots
100 feet from the north end of a bridge and 4.5 feet east of the berm line,
as well as 104 feet from the north end of the bridge and 2 inches west of
the line, which would have been in the roadway. See id. at 141-44.
Appellant’s counsel did not point out any inconsistencies between the
trooper’s testimony and the photographs.
In light of the foregoing, we agree with the trial court’s reasoning and
the Commonwealth’s argument that, notwithstanding the inaccuracy of the
isolated statement made by Trooper DeAndrea, the Commonwealth merely
presented inconsistent evidence, the weight of which was for the jury to
consider against all the evidence presented at trial. Accordingly, we
disagree with Appellant that Trooper DeAndrea’s testimony rose to the level
of false testimony triggering an affirmative duty on the part of the
Commonwealth to correct it. See Carpenter, 372 A.2d at 810.
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Appellant’s second claim under his fourth issue alleges multiple
instances of false testimony. First, he challenges Trooper DeAndrea’s
testimony that a photograph depicted “blood soaked earth” in the dirt lot
where the incident began.22 Appellant’s Brief at 42. For ease of review, we
set forth the following.
At trial, Commonwealth expert witness George J. Surma 23 testified
that he prepared a report, entered as Exhibit C-74, of blood testing on
various items for comparison to the victim’s blood. N.T., 7/12/10, at 7-9.
The report showed human blood on several items, including “underwear[,]
asphalt[,] nail clippings and a rock.” Id. at 10. According to Appellant’s
brief, two additional items were “cans containing the ‘soil and blood.’”
Appellant’s Brief at 42. Surma testified that the genetic markers obtained
on the “items were consistent with those of the victim’s blood.” N.T.,
7/12/10, at 11. The following exchange occurred:
[Commonwealth:] And in some of the many items, you
weren’t able to identify blood at all, or if you were, you
weren’t able to go any further than to say that it was, in
fact, blood, correct?
22
See N.T., 7/8/10, at 51. Appellant also cites pages 101 through 104 and
pages 129 through 132 of the July 8, 2010, trial transcript for additional
references to “blood soaked earth.” Appellant’s Brief at 42. However, our
review of those pages does not reveal this phrase. Furthermore, pages 129
through 132 are of defense counsel’s cross-examination of Trooper
DeAndrea, and thus his testimony was elicited by Appellant himself. Finally,
no defense objection to the evidence was made at any of these pages.
23
Surma was qualified to testify as a forensic expert in serology and
microscopy.
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[Surma:] Well, I was able to identify human blood
in the items. But I was only able—like, for instance in . .
. a swabbing from the deceased, I was only able to get a
PGM 1+ on the blood.
Id. (emphasis added).
On appeal, Appellant contends that Exhibit C-74 “did not conclude that
the red material soaked into the earth was in fact blood” but instead
“determined that the alleged ‘blood soaked earth’ contained ‘nothing of
probative value.’” Appellant’s Brief at 42. On this premise, he avers the
Commonwealth knowingly presented Trooper DeAndrea’s false testimony
that photographs depicted “blood soaked earth.” Appellant isolates Surma’s
response, emphasized above, to argue Surma “created the false
impression that he did in fact find human blood in all of the items” listed in
the report. Appellant’s Brief at 43 (emphasis added).
To Appellant’s claim that Surma’s testing of “the cans containing ‘the
soil and blood’” showed “nothing of probative value,” the trial court found:
[A]lthough Commonwealth’s Exhibit [C-]74 indicates that
the two soil samples taken from the lot contained “nothing
of probative value,” we note that the reports do not
indicate that the samples were not human blood.
[N]either the Commonwealth nor [Appellant] presented
any testimony elaborating on the meaning of this
statement.
Trial Ct. Op., 5/31/11, at 27-28 (emphasis added). The court thus reasoned
that Appellant’s interpretation of the report—that there was no human blood
in the samples—is speculative. Appellant’s argument on appeal is consistent
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with the court’s summation; Appellant avers “the lab test results . . . did not
conclude that the red material soaked into the earth was in fact blood;
rather, those test results . . . determined that the alleged ‘blood soaked
earth’ contained ‘nothing of probative value.’” Appellant’s Brief at 42.
Furthermore, we note Appellant’s careful articulation that Surma merely
created a “false impression” for the jury, not that Surma testified definitively
to a certain fact or expert opinion. See id. at 43. Finally, Appellant’s prior
issue—concerning blood spots on the berm or roadway—concedes there was
blood on the ground. Having reviewed Trooper DeAndrea’s testimony
against the Commonwealth’s examination of Surma, we disagree with
Appellant’s premise that Trooper DeAndrea’s testimony was so false or
misleading as to warrant a new trial. The weight of the phrase “blood
soaked earth” was for the jury to decide.
Appellant next cites additional testimony by Trooper DeAndrea about a
photograph, in which he stated: “[A]lthough there are trees that block your
view of the lot from the road, there are no trees in this particular dirt
area where the vehicle was parked and all the blood was found.” Id.
at 44 (emphasis in Appellant’s brief). Appellant asserts “the additional
testimony of Trooper DeAndrea regarding the location of the car was also
false.” Id. He maintains that in the grand jury investigation, Trooper
Thomas Mastruzzo “testified that the car was near the tree line and
would have prevented [Appellant] from getting out of the passenger
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door because he was pinned up against the wooded area.” Id. at 43-
44. Appellant concludes that all of these misstatements “falsely
contradict[ed]” his own testimony at trial. Id. at 45. We find no relief is
due.
The trial court noted that “[o]n cross examination, [Appellant]
acknowledged that: 1) his exit from the Victim’s vehicle was not blocked by
anything; 2) he could have opened the door and run away; and 3) he never
considered the option of retreating, but instead, immediately ‘lashed out’
and stabbed [the victim] instead.” Trial Ct. Op., 5/31/11, at 28. The court
opined “it [was] well within the purview of the jury to determine whether
Trooper DeAndrea’s and Trooper Mastruzzo’s testimony conflict with each
other, thereby compelling the jury to determine who and what evidence to
believe, or simply, the two witnesses merely had a different interpretation of
the evidence found at the scene of the crime.” Id. at 28-29.
We agree with the trial court that the Commonwealth merely
presented evidence that was inconsistent with Appellant’s testimony. See
Ali, 10 A.3d at 294. Appellant’s argument—on this as well as his other false
testimony claims—would require the Commonwealth to present uniform
evidence and any variance or discrepancy amounts to the knowing
presentation of false evidence.
Appellant next avers the Commonwealth knowingly presented the false
testimony by Trooper DeAndrea that “slide marks on . . . [the victim’s] face
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correspond with the same slide marks on the road, the same direction as
if when the body is being run over is pushed toward Route 611 and his head
included.” Appellant’s Brief at 45-46 (citing N.T., 7/8/10, at 45). Appellant
also complains that Trooper DeAndrea testified, in reference to a
photograph, Exhibit C-9, “This corresponds with that because this is all skin
and fat that’s left sliding on the road. If you’ve got a really bad brush burn,
that’s they type of slide mark that is that [sic] correlates or corresponds with
that.” Id. at 46 (quoting N.T., 7/8/10, at 45). Appellant maintains that
Trooper DeAndrea was not the accident reconstructionist in this case.
Instead, Appellant avers, the accident reconstructionist was State Police
Corporal Gerald Gallagher, and he testified at the grand jury “there were no
scrape or slide marks on the roadway caused by the victim sliding on the
roadway by the impact.” Id.
The trial court opined:
At trial, the Commonwealth introduced
Commonwealth’s Exhibit #7 which depicted the Victim’s
body as it was found on the roadway and specifically
showed the existence of scrape marks. These marks were
composed of skin and fat left on the roadway as the
Victim’s body was pushed toward the curb. This
photographic evidence corroborates Trooper DeAndrea’s
testimony. To the extent that Trooper Gallagher may have
said something that conflicted with this evidence, said
conflict is of no effect. The physical evidence presented in
this case tends to support Trooper DeAndrea’s version of
events and as such, there is no intentional falsity as
claimed by [Appellant].
Trial Ct. Op., 5/31/11, at 29 (citing N.T., 7/8/10, at 3; Ex. C-7).
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As stated above, the certified record does not include the trial exhibits
and thus this Court cannot review Exhibit C-7 or C-9. Appellant’s brief does
not dispute, let alone mention, the trial court’s discussion of C-7 above.
Appellant bore the burden of ensuring the certified record includes all of the
materials necessary for our review. See B.D.G., 959 A.2d at 372. Because
our analysis of Appellant’s issue requires review of these exhibits, we hold
this particular claim is waived. See id.Appellant’s next claim of false evidence is Commonwealth witness
Elaine Foulides’ testimony that “she had never seen the ‘Joe Camel jacket’
that was found in [the victim’s] vehicle the night of the incident.”
Appellant’s Brief at 46 (citing N.T., 7/12/10, at 103). Appellant alleges the
following. The Commonwealth “clearly elicited this information to create the
false impression that the Joe Camel jacket belonged to” Appellant and
argued in closing argument: “there was contamination on the one thing
which just happened to be the only thing that didn’t belong to the” victim.
Appellant’s Brief at 47. However, the Commonwealth “knew full well that
the Camel Joe jacket” belonged to the victim, as Trooper Gallagher had
testified before the grand jury that the jacket belonged to the victim. Id.We find this claim waived for failure to object at trial.
Our review of the trial transcript reveals the following. The witness
Foulides testified she met the victim in 1981, the victim was her best friend,
and she identified his body after the incident. N.T., 7/12/10, at 99, 101.
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The Commonwealth asked Foulides to describe her relationship with the
victim, and Appellant objected. The following exchange occurred at sidebar:
THE COURT [Addressing Appellant’s counsel]: What’s
your objection[?]
[Appellant’s counsel]: Relevance.
THE COURT: Do you want a proffer?
[Commonwealth]: Two things, life in being [sic] and
peacefulness. That’s part of the motions in limine which I
filed. And once there’s a self-defense injected into a case,
the Commonwealth has a right to elicit testimony
regarding peacefulness.
And beyond that [Foulides] identified the remains. She
can say that was his car, and she can say he never had
a Joe Camel jacket which is relevant to show that . . .
it was something foreign used in the car. That’s the
one item that had that contamination on it, so I
think it’s highly probative.
[Appellant’s counsel]: Okay.
Id. at 100 (emphasis added). The sidebar discussion concluded and the
Commonwealth resumed questioning, which included three questions about
the Camel Joe jacket: whether she had seen “the photographs of the . . .
jacket that was found draped over the seat of the [victim’s] car,” if she had
“ever seen [the jacket] before,” and if the jacket belonged to the victim. Id.
at 101, 103. Appellant raised no contemporaneous objection to these
questions or Foulides’ responses.
We hold this claim is waived because Appellant’s counsel had agreed
to the Commonwealth’s proffer of Foulides’ testifying about the Camel Joe
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jacket. See Pa.R.E. 103(a)(1); Tha, 64 A.3d at 713. We reiterate that in
the proffer, the Commonwealth specifically stated the jacket was “the one
item that had that [sic] contamination on it.” N.T., 7/12/10, at 100.
Furthermore, Appellant raised no objection to the questions posed by the
Commonwealth about it or to Foulides’ responses. See id. at 103.
Appellant next argues the Commonwealth made misleading
statements at the February 2011 evidentiary hearing on his post-sentence
motions, specifically during recross-examination of Appellant’s trial counsel,
Attorney Fannick. We quote Appellant’s lengthy claim:
At the February 2011 evidentiary hearing, the prosecutor
conducted the following recross examination of Attorney
Fannick . . . in an effort to counter the defense assertion
(regarding the testimony at trial of Trooper De[A]ndrea,
addressed below) that there was no evidence, factual,
expert, or otherwise, provided to the defense before trial
to support the Commonwealth’s claim (presented at trial
for the first time through the “expert” testimony of Trooper
De[A]ndrea) that [Appellant] “backed up” his vehicle over
the victim—the only evidence that supported the first-
degree murder claim of an intentional killing.
The prosecutor falsely and misleadingly referred to non-
existent statements of a truck driver as related to a
woman who supposedly reported to the police that the
trucker heard a vehicle hit what sounded like a deer, the
vehicle stopped and then it sounded like it backed up
again over the deer. . . .
Appellant’s Brief at 48 (citing N.T., 2/11/11, at 45-47). Appellant reasons as
follows. “[N]o such statements exist[ed].” Appellant’s Brief at 48. Instead,
the woman referred to by the prosecutor was Patricia Ann Labar, who
worked at the Comfort Inn near the scene of the homicide. She told the
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police she “punched in” at 4:00 a.m. that morning, “had just driven by the
scene and did not see anything out the ordinary,” and that her daughter
Brenda, who also worked there, told her “that a truck driver told [sic] that
around [4:30] that he heard a car hit something and squeal its tires taking
off [sic.]” Id. at 48-49. “The woman reported nothing about the trucker
saying that he heard a vehicle stop and proceed in reverse after hitting
what sounded like a deer.” Id. at 49.
The trial court opined:
Upon review of [Appellant’s] argument and Defense
Counsel’s questioning of Attorney Fannick at the hearing
on [Appellant’s] Post-Sentence Motions[ ], we can only
surmise that [Appellant] is trying to once again attack the
lay opinion testimony of Trooper DeAndrea rendered at the
time of trial. Perhaps he is claiming a violation of the
prosecution’s duty to provide discovery on this issue,
although as written, it is difficult to understand. We rely
on our earlier arguments with regard to the classification
and credibility of Trooper DeAndrea’s testimony.
Trial Ct. Op., 5/31/11, at 32-33.
We agree with the trial court’s reasoning. Although this claim appears
under Appellant’s argument that “[t]he Commonwealth knowingly presented
false and/or misleading testimony to the jury,” Appellant’s Brief at 37, 48
(emphases added), his primary challenge is to the prosecutor’s question
posed to a witness at the post-sentence hearing.
More importantly, Appellant would have this Court overlook Attorney
Fannick’s response that he did not agree with the Commonwealth’s
statements. The Commonwealth’s statement, which Appellant now
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challenges, arose during recross-examination of Attorney Fannick. N.T.,
2/11/11, at 45. We emphasize Attorney Fannick’s responses:
[Commonwealth: One interview was] of a trucker who
was staying at the hotel that was—his room was several
hundred yards from the location of the [victim’s] body, and
[the trucker] indicated to the Pennsylvania State Police
that he had heard the striking of the vehicle and that it
sounded like that it had hit a deer. He heard that the
vehicle stopped and that it sounded as if it backed up
over the deer. Isn’t there such an interview in the
discovery that you have?
[Attorney Fannick: T]hat was the statement that I was
referring to. Quite honestly, whether or not—I mean, I
recall now that person indicating that they did hear a
vehicle, that they did hear the vehicle hit something, and
that they heard the vehicle stop. That’s what I recall right
now. I do know there was a report. I do know that I
reviewed it.
Q And you’re saying that you don’t have a
specific recollection of the interview also saying that
it sounded as if the vehicle backed up over the
object again?
A As I sit here now, no. I would have to review
the report again.
Q We’ll find it for you. Do you also recall that there
was a second interview of an employee of the hotel who
worked in the lobby who was interviewed and she repeated
what [sic] the trucker came down and told her which was
consistent with what I just told you?
A I do know there was a report from a woman who
worked there who identified the statement of the other—or
verified whatever report you want to use, the statement of
the trucker. Again, specifically as I sit here now, I
would have to look at the report again.
Q But would it be fair for me to say that if it’s in the
report you read it?
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A Yeah. I just don’t remember the report.
[Commonwealth:] That’s all I have on the issue.
Id. at 45-47 (emphases added).
In the instant appeal, Appellant wholly ignores Attorney Fannick’s
repeated statements that he did not remember the contents of the report
referred to by the Commonwealth. Again, this examination was not
conducted at trial, and neither the Commonwealth’s questions nor Attorney
Fannick’s responses were trial evidence for a jury. Accordingly, we decline
to find statements made in the Commonwealth’s questioning at a post-
sentence hearing amounted to false testimony requiring a new trial.
Appellant’s sixth and final claim under this issue is that Trooper
DeAndrea gave false opinion testimony that he “‘backed up’ over the victim.”
Appellant’s Brief at 51. Appellant maintains this testimony conflicted with
the expert opinion of the Commonwealth’s forensic pathologist, Dr. Isidore
Mihalakis, that the victim’s “lower extremities,” from “the waist down[,] was
not wheel run over [sic].”24 See N.T., 7/8/10, at 176. However, Appellant
avers Trooper DeAndrea “‘opin[ed]’ that the [victim’s] pants were torn when
the [victim’s] vehicle ran him over backwards on the buttocks.” Appellant’s
24
Appellant’s brief states: “When discussing the string from the [victim’s]
pants, Trooper De[A]ndrea testified as follows. See [Reproduced Record at]
24 a.,” and “Dr. Mihalakis opined as follows. See [id. at] 47a.” Appellant’s
Brief at 51. However, he sets forth no testimony. Nevertheless, we glean
the relevant testimony from his argument and the citations to his
reproduced record.
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Brief at 51.
The trial court opined that this claim was waived for failure to raise
this claim in Appellant’s post-sentence motion, although it was raised in the
brief accompanying the post-sentence motion. Trial Ct. Op., 5/31/11, at 30.
Appellant does not address this analysis. We disagree that the issue is
waived for failure to raise it in the post-sentence motion. Nevertheless, we
hold the issue is waived for failure to raise a contemporaneous objection to
Trooper DeAndrea’s testimony. See Pa.R.E. 103(a)(1); Tha, 64 A.3d at
713.
Trooper DeAndrea testified about a photograph entered as Exhibit C-
62 in part as follows:
So it appeared that the only way for the thread from
the [victim’s] torn pants to get on the car there and have
the patterning injury matching the pattern of the steel
under the car is for this portion of the car to have come in
contact with his left rear buttocks tearing the pants at the
same time.
N.T., 7/8/10, at 87. Subsequently, Dr. Mihalakis testified on cross-
examination that “there was no crushing injuries to the [victim’s] legs.” Id.
at 174. When asked if there were no crushing injuries to the victim’s hips,
the expert responded, “Only the one of the right side there with the
avulsion tear of the iliac crest.” Id. at 175 (emphasis added). Dr. Mihalakis
also agreed there were no “crushing injuries in the left buttocks, the hips,
[and] the legs.” Id. (emphasis added). He then agreed “the lower
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extremities of the [victim’s] body from . . . the waist down was not wheel
run over.” Id. at 176.
We deem the above testimony to be merely conflicting testimony from
two Commonwealth witnesses. In light of Dr. Mihalakis’ testimony
concerning injuries to the victim’s right hip and the lack of crushing injuries
in his left buttocks, we disagree that Trooper DeAndrea’s testimony rose to
the level of was false evidence knowingly presented by the Commonwealth.
While Trooper DeAndrea’s testimony was not entirely identical to Dr.
Mihalaki’s opinion, the weight of the testimony was for the jury to decide.
Because Appellant raised no objection to Trooper DeAndrea’s testimony, this
issue is waived on appeal.
We now reach Appellant’s final claim on appeal—that he is entitled to a
new trial because of newly discovered DNA evidence: the blood on the
vehicle’s front license plate was not his. We summarize his argument as
follows. At trial, the Commonwealth informed the jury there was a mixture
of blood from the victim as well as “an unknown individual, with the strong
implication” that it was Appellant. Appellant’s Brief at 52. The
Commonwealth “forcefully argued in closing . . . that the evidence of wiping
down the license plate . . . proved that . . . Appellant acted intentionally and
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not accidentally.” 25 Id. at 54. “In his own testimony, [Appellant] denied
wiping down the front license plate[.]” Id. at 53.
Appellant further claims that at the time of trial, the Commonwealth
had his DNA but “intentionally fail[ed]” to test and compare it to the DNA
profile of the blood on the license plate. Id. at 55, 57. Appellant claims he
“recently obtained evidence demonstrating that the blood on the license
plate, which the jury was told was a mixture of [the victim’s] and another
individual’s, in fact was not his.” Id. at 54. This new evidence—that the
victim “and some other, unknown individual” contributed the DNA on the
license plate—”is substantively different from what the Commonwealth had
so vigorously maintained and argued . . . at trial: that it came from [the
victim] and another individual, meaning, of course, . . . Appellant.” Id. at
57. Finally, Appellant alleges: (1) “this DNA evidence could not have been
obtained prior to the conclusion of the trial by the exercise of due diligence”
because he “was not able to confirm until recently that this DNA blood
sample was in fact submitted to [the state police] in 2008;” 26 (2) the DNA
25
Appellant cites the testimony of Commonwealth witness Michael
Albertson, that Appellant told him about the incident and stated he,
Appellant, had “wiped [the car] all down.” N.T., 7/9/10, at 67.
26
Presumably in support, Appellant states: (1) at the original sentencing in
June of 2008, following his guilty plea to third-degree murder, the trial court
ordered the Department of Corrections to obtain his DNA blood sample and
fingerprints; and (2) his “pro se numerous requests” for information were
“repeatedly refused” until he “was finally able to obtain documentation that
his DNA blood sample was in fact taken at SCI Coal Township on December
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evidence is exculpatory because it “definitively excluded [him] as a
contributor of any DNA evidence on the blood license plate;” (3) “the
evidence will not be solely to impeach the credibility of a witness;” and (4)
the evidence “would likely result in a different verdict if a new trial were
granted” because if the jury had heard “his blood was not part of the
mixture of blood evidence found on the front license plate . . . it would never
had accepted the Commonwealth’s evidence and argument that he acted
intentionally and maliciously in killing the victim and then attempting to
cover up the crime by wiping down the plate.” Id. at 58-59.
“When we examine the decision of a trial court to grant a new trial on
the basis of after-discovered evidence, we ask only if the court committed an
abuse of discretion or an error of law which controlled the outcome of the
case.” Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa. Super. 2010)
(citation omitted).
To be granted a new trial based on the basis of after-
discovered evidence:
[Defendant] must demonstrate that the evidence:
(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely
result in a different verdict if a new trial were
granted.
16, 2008 and submitted to the . . . State Police DNA Database Laboratory.”
See Appellant’s Brief at 55-56.
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The test is conjunctive; the defendant must show by a
preponderance of the evidence that each of these factors
has been met in order for a new trial to be warranted.
[T]he petitioner must explain why he could not have
produced the evidence in question at or before trial by the
exercise of reasonable diligence. [D]ue diligence requires
that defendant act ‘reasonably and in good faith to obtain
the evidence, in light of the totality of the circumstances
and facts known to [him]’[.] Thus, a defendant has a duty
to bring forth any relevant evidence in his behalf. . . .
Likewise, a defendant who fails to question or investigate
an obvious, available source of information, cannot later
claim evidence from that source constitutes newly
discovered evidence. Absent a plausible explanation for
the failure to discover the evidence earlier, evidence
obtained after trial should not be deemed “after-
discovered”; to allow the defendant to claim information
actually or constructively within his knowledge and
available to him is after-discovered.
Id. at 363-64 (citations omitted).
We reiterate that trial was conducted in July 2010. Appellant’s brief
does not specify how or when he acquired the “new” DNA evidence.
Instead, he avers he “recently obtained [the] evidence,” 27 and that Dr. Terry
Melton “compared [his] DNA profile based on samples obtained by Ruth Ann
Harner[28 ] using a DNA kit with the DNA profiles generated by the State
Police’s own expert, Mr. Mayberry.” Appellant’s Brief at 54, 56.
27
Appellant also asserts he “was not able to confirm until recently that his
DNA blood sample was in fact submitted to [the state police] in 2008.”
Appellant’s Brief at 58. However, the submission of his DNA blood sample to
the state police is not newly discovered evidence warranting a new trial.
28
The trial court explained that Ruth Ann Harner is Appellant’s ex-wife. Trial
Ct. Op., 5/31/11, at 6.
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Again, Appellant wholly ignores the discussion set forth in the trial
court’s opinion, which reveals the following pertinent facts and findings:
[Appellant] was given the [state police] report describing
he two DNA profiles obtained from the mixed DNA sample
in October of 2007. He was, as of that date, put on notice
that: (1) the evidence removed from the license plate
contained a DNA mixture; (2) the victim . . . could not be
excluded as one of the contributors; (3) one of the
contributors was unidentified; and (4) this information
might be introduced by the Commonwealth at trial. If
[Appellant] and his counsel had wanted to, they
could easily have obtained a sample of his own DNA .
. . and had it analyzed by an independent laboratory
and compared to the DNA test results described in
the [state police] report prior to his trial in July of
2010. His own DNA profile was always available to him . .
. and he simply waited until October of 2011 to do
anything in this regard.
Trial Ct. Op., 11/4/12, at 5 (quoting and agreeing with Commonwealth’s
Brief, 10/22/12, at 10-11). The court further reasoned that Appellant “failed
to provide a plausible explanation for his failure to discover his own DNA
profile and have it compared to the DNA mixture found on the license plate.”
Trial Ct. Op., 11/4/12, at 7.
The testimony of the witnesses at the evidentiary
hearing clearly establishes that it is relatively easy to
obtain one’s own DNA sample and have it analyzed by a
laboratory in a relatively short period of time, even if you
are confined to a state correctional institution.
[Appellant’s] ex-wife, . . . Harner, testified that she was
able to obtain a DNA kit from Mitotyping Technologies
sometime around July 4th or 5th 2012 and deliver the kit
to Cheryl Rivera, a certified nursing assistant and
[Appellant’s] niece. Cheryl Rivera testified that she went
to the prison facility . . . on July 9, 2012, and utilizing the
DNA kit[,] took a swab from inside of [Appellant’s] cheek,
put the swab into the packaging provided with the kit,
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sealed the envelopes and took the package to the post
office immediately and mailed it back to Mitotyping
Technologies. Dr. Terry Melton of Mitotyping Technologies
testified that she received the DNA swab kit . . . on July 9,
2012, and that the sample . . . was used to generate an
STR profile of [Appellant’s] DNA. The report that was
generated by Dr. Melton was ready and presented to
defense counsel and the Court on July 18, 2012. Clearly,
this was not a long and drawn out.
Trial Ct. Op., 11/4/12, at 6.
As stated above, Appellant’s argument on appeal fails to address this
analysis by the trial court. He merely asserts, without further explanation,
that “the DNA profile could not have been obtained prior to the conclusion of
the trial by the exercise of due diligence.” Appellant’s Brief at 58. We find
no merit to Appellant’s bald claim. Instead, we agree with the trial court
that Appellant failed to establish the first prong of a newly discovered
evidence claim. See Padillas, 997 A.2d at 363-64. Consequently, we hold
a new trial is not required.
As one final claim in this appeal, Appellant argues in the alternative
that
the Commonwealth committed prosecutorial misconduct by
having possession of [his] DNA blood sample some two
years before trial but failed/refused to have it tested and
compared to the blood sample taken from the vehicle or,
in fact, had it tested and compared but knowingly and
intentionally withheld that information from the defense
and the jury at trial.
Appellant’s Brief at 59. We find no relief is due.
At trial, Pennsylvania State Police DNA forensic scientist supervisor
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Kenneth Mayberry testified that he could “determine . . . definitively”
whether the “mixture DNA” on the front license plate came from more than
one person or if it came from the victim. N.T., 7/12/10, at 71, 72. He also
testified that there could have been DNA from a second individual in the
mixture DNA. Id. at 74.
On appeal, Appellant concedes that at trial, the Commonwealth argued
and presented evidence that DNA on the front license plate came from the
victim and an unknown individual. Id. at 52, 55, 57. His argument,
however, is that the Commonwealth strongly intimated that he, Appellant,
was the unknown individual, and that his new DNA evidence conclusively
excludes him as that unknown individual. As stated above, he asserts this
conclusion—that the new DNA evidence established the victim “and some
other, unknown individual” were the contributors of the DNA on the license
plate—was “substantively different” from the Commonwealth’s argument
that the DNA “came from [the victim] and another individual.” See id. at 57.
Finding Appellant’s issues either waived or meritless, we have no basis
for disturbing the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2015
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